Nightingale, R v

In sentencing a single rape, a court must select the applicable guideline category by reference to genuinely material aggravating features. An abuse of trust may justify an increase from the ordinary starting point, but does not necessarily justify placing the offence in the higher category for rape accompanied by aggravating features.

The sentence must also reflect unjustified delay not caused by the offender. The resulting sentence should be proportionate to both the offender’s exploitation of the complainant’s vulnerability and any proper mitigation for delay.

The appellant was convicted after trial at Maidstone Crown Court of vaginal rape and was sentenced to eight and a half years’ imprisonment. He had no previous convictions and a good work record. His applications for leave to appeal against conviction and sentence were rejected by the single judge.

Only the renewed application concerning sentence came before the Court of Appeal. The central issue was whether the judge had wrongly treated the offence as rape accompanied by aggravating features under the applicable rape sentencing guidelines, and whether sufficient allowance had been made for delay for which the appellant was not responsible.

1. Appeal against sentence allowed. The court granted leave, quashed the sentence of eight and a half years’ imprisonment, and substituted a sentence of six and a half years.

2. The sentencing judge’s sentence could only be explained by placing the offence in the guideline category of rape accompanied by aggravating features. That category had an eight-year starting point and a range of six to 11 years. The ordinary category for a single rape by a single offender had a five-year starting point and a range of four to eight years.

3. The court accepted that the appellant had exploited the complainant’s vulnerable condition after remaining alone with her under the guise of assisting her. That conduct involved an element of abuse of trust and justified an increase from the ordinary starting point. However, no other aggravating feature justified the higher category. The abuse of trust in this case was not sufficiently serious to elevate the offence into it.

4. Starting at five years, the proper increase for the aggravating circumstances was to seven years. The court then gave a further reduction for the unacceptable delay before trial, which was not the appellant’s fault. The proper sentence was therefore six and a half years.

• Court of Appeal (Criminal Division): Granted renewed leave to appeal against sentence, allowed the appeal, quashed the sentence of eight and a half years, and substituted six and a half years.
• Maidstone Crown Court: Following trial, convicted the appellant of vaginal rape on 14 November 2008 and imposed a sentence of eight and a half years’ imprisonment.